IMPORTANT POINT
Mohammedan Law—Will—Bequest in favour of an heir is invalid unless other heirs consent to it after testator’s death—Mohammeden cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts.

JUDGMENT (C.A.V.)

Narendra Kumar Vyas, J.—This second appeal has been filed by the appellants/defendants under Section 100 of the C.P.C. against judgment and decree dated 20.09.2007 passed by District Judge, Korea (Baikunthpur) (C.G.) in Civil Appeal No. 07A/2006 (Old Case No. 08A/2005) (Sattar Ali Vs. Jasimuddin & others) setting aside the judgment and decree dated 29.03.2005 passed by Civil Judge Class-II, Baikunthpur, District- Korea (C.G.) in Civil Suit No. 13A/2002 for declaration and possession of the suit property i.e. agricultural land bearing Khasra No. 685, 782 & 920 area admeasuring 0.25, 0.10 & 0.65 R.A. respectively situated at Village-Targawan, Patwari Halka No. 24, Revenue Circle- Patana, District- Baikunthpur (C.G.)

2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 13A/2002 which was filed for declaration and possession of the suit property.

3. The instant Second Appeal is admitted for hearing by this Court vide its order dated 11.08.2010 on following substantial questions of law:—

1. Whether the Will Ex. P-2 is proved in accordance with law, more particularly, law relating to Hiba under the Mohammedan Law ?

2. Whether the Will Ex. P-2 is a suspicious document and the first appellate Court was not justified in allowing the suit preferred by the plaintiff ?

4. Thereafter, on 05.07.2021, an additional issue has been framed by this Court, which reads as under:—

“Whether the first appellate Court is justified in granting decree of the entire suit property in favour of plaintiff Sattar Ali on the basis of Will dated 16-3-1992 (Ex.P-2) ignoring the fact that the testator of the Will namely, Noor Mohammad was a Sunni Mohammad governed by Hanifi law and by virtue of Rules 117 and 118 of the Sunni Hanifi law, “a Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator.”?”

5. The brief facts, as reflected from the plaint averment, are that the plaintiff has filed Civil Suit No.13A/2002 before Civil Judge Class-II, Baikunthpur, District-Korea (C.G.) for declaration and possession mainly contending that defendants No.1 to 4 are Sunni Mahomedan and they are governed by Sunni Hanifi Law whereas, defendants No. 5 & 6 are Hindus and they are governed by Hindu Law. It has been contended that the agricultural land bearing Khasra No. 685, 782, 920 area admeasuring 0.25, 0.10 & 0.65 R.A. respectively is situated at Village-Targawan, Patwari Halka No.24, Revenue Circle-Patana (Suit Property) belonging to Late Noor Mohammad S/o Radhan Ali. Late Noor Mohammad was residing in the house built up in the suit property and doing agricultural work. Noor Mohammad expired on 29.08.1992 and his wife expired prior to his death. He died issue-less. It has been further contended that due to old age, he was unable to look after agricultural work, therefore, in the year 1989, he kept the plaintiff to look after him as well as to take care of his agricultural work. The plaintiff was living with Late Noor Mohammad with his wisdom. The plaintiff is nephew of Late Noor Mohammad.

6. It has also been further contended that looking to the care taken by the plaintiff, in the month of March, 1990, Late Noor Mohammad shown his intention in presence of prominent persons of Village-Targawan that he intends to make the plaintiff as his legal heir and intended to transfer his movable and immovable property in the name of the plaintiff for that he is willing to execute a Will. It has been further contended that on 23.03.1990, Late Noor Mohammad has expressed before Patel & Panch of Village-Targawan, Sarpanch of Village- Kasra, the then Sarpanch and citizen that he became old and ill, the plaintiff is looking after him for the last one year, therefore, being satisfied with the care taken by the plaintiff, he is han